116 Misc. 72 | N.Y. Sup. Ct. | 1921
This is one of the numerous cases of property disputes which find their way into the courts after, and usually on account of, the remarriage of and birth of issue to persons whose children by a prior marriage are living.
The defendant John McKenna had as his first wife Abbie, who died intestate in Brooklyn on July 6,1897, exactly twenty-four years ago. Eleven years before her death the premises in question had been conveyed to her by deed from one McDermott. It is claimed by her husband that he paid the consideration for the deed, but if that be true it is immaterial in this case since he admits by his answer that at his wife’s death the property descended to their two daughters as her heirs at law, subject to his tenancy by the curtesy. When their mother died the plaintiff Mary Collins was thirteen years old and Helen Brady was eleven years old. They lived with their father in a small house which stood on the premises in question. John McKenna married again after the death of his wife and with his second wife and his daughters continued to live on the
At the time of the death of Abbie McKenna there was a mortgage for $1,000 which covered the premises in question and an adjoining parcel the title to which, as I understand it, then stood and now stands in the name of the defendant John McKenna. The mortgage Avas made by Abbie and John McKenna and was dated in November, 1896, about eight months before the death of Abbie McKenna. It has been paid off by John McKenna at some time since the death of his first wife.
It is alleged in the complaint that in November, 1907, shortly after the younger daughter Helen became of age, John McKenna fraudulently obtained a deed from his two duaghters to himself conveying their remainder in fee to him, the holder of the life estate, •in the property in question. As might be expected, their father repudiates this charge and declares that the conveyance which he received Avas a voluntary conveyance from his daughters to himself. The evidence which surrounds the execution of the paper is conflicting ; but, on the whole, it strongly tends to sustain the plaintiffs’ contention. Their own testimony Avas direct and positive Avhile that of their father was, at many points, evasive or contradictory. He was not present when the deed was signed by his daughters, nor is there any proof that there was a delivery of the deed by them to him unless the real estate agent, Mr. Clark, was acting for him to receive the deed. It is clearly established that the conveyance was Avithout
It is quite apparent from the defendant John McKenna’s testimony that he considered that he had more right to the property than his daughters by reason of the fact that he had originally purchased it for his wife and paid the mortgage debt and taxes and repairs on it. Doubtless, too, when his children had grown up, were married and had left his home, his views as to his own rights in the property may have been strengthened so that he could persuade himself that he was justified in obtaining a deed from his children; and, as he said, thereby be enabled to offer the property as security on bailbonds without further doubt as to his title which on one occasion had been questioned. It is unfortunate for the defendant that Mr fllark, the real estate agent who kept all his papers and attended to his real estate matters, is no longer living. No person who had been connected with Mr.
When we consider the relationship existing between the parties to this transaction we see at once that there is a principle of law applicable to the case which is different from that which would apply where no relationship existed. Judge Hand, writing for the Court of Appeals in Cowee v. Cornell, 75 N. Y. 91, 99, states the rule plainly: “It may be stated as universally true
“ The law presumes in the case of guardian and ward, trustee and cestui que trust, attorney and client; and perhaps physician and patient, from the relation of the parties itself that their situation is unequal and of the character I have defined; and that relation appearing itself throws the burden upon the trustee, guardian or attorney of showing the fairness of his dealings.
“ But while the doctrine is without doubt to be extended to many other relations of trust, confidence or inequality, the trust and confidence, or the superior
In Carpenter v. Soule, 88 N. Y. 251, 256, Judge Finch stated the rule thus: “We have held that the mere relation of father and son does not per se create a presumption of fraud or undue influence in a mutual dealing, but may do so when connected with other facts showing inequality or controlling influence” (citing Cowee v. Cornell, supra); and Judge Andrews in Matter of Smith, 95 N. Y. 516, 522, speaking of persons occupying a confidential relation to each other, says: “ This rule does not proceed upon a presumption of the invalidity of the particular transaction, without proof. The proof is made in the first instance when the relation and the personal intervention of the party claiming the benefit, is shown [italics mine]. The law is not so impracticable as to refuse to take notice of the influence of greed and selfishness upon human conduct, and in the case supposed, it wisely interposes by adjusting the quality and measure of proof to the circumstances, to protect the weaker party and, as far as may be, to make it certain that trust and confidence have not been perverted or abused.”
I further find as a fact upon the evidence that the plaintiffs were not aware or advised as to their rights in the premises in question as the heirs at law of their mother, at the time when they signed the deed to their father. Before obtaining such deed it was the plain duty of their father to acquaint them fully with their rights as remaindermen and with his own as life tenant. In this duty I find him derelict; hence' the rule applies that “ Where there is such a relation of
It was the duty of the defendant John McKenna as life tenant to pay the taxes and to keep down the interest on the mortgage for $1,000 during his life. It was not, however, his duty to pay off for the benefit of thé plaintiffs the principal of the mortgage in so far as it affected the premises in question. As to such part of the mortgage as covered those premises the maxim of equity applies that those who seek equity must do equity. Hence, although I shall decide for the plaintiffs upon the main issue, I shall direct that the decree provide that upon the delivery of the deed for cancellation as prayed for, the plaintiffs simultaneously repay to the defendant John McKenna so much of the mortgage debt as was a lien on the premises in question. If the sum cannot be agreed upon I will fix it on the settlement of the findings.
Judgment for the plaintiffs in accordance with this memorandum against both defendants but without costs of the action.
Judgment accordingly.